Section 66A: Unconstitutional Execution?


March 24, 2015, has been considered an important date for the proponents of free speech in India. Section 66A of the Information and Technology Act, 2000 has been struck down and held unconstitutional by a division bench of the Hon’ble Supreme Court of India. Liberalization could be sensed as freedom of speech on the internet was upheld by limiting governmental interference.


Shreya Singhal v. Union of India was brought up before the Hon’ble court in the form of Public Interest Litigation by a public-spirited law student against Section 66A. It was inserted by bringing an amendment in 2008 to bring chilling effect on the free speech of the general public. In the defence, the Government tried to assure not to misuse the section, but the Hon’ble bench prudent of consequences rejected. The court struck down, calling it “open-ended and constitutionally vague” to expand the idea of free speech over the internet. This judgment brought new-era to liberal views to express themselves.


But happiness could not last for long, as individuals were still charged under the same section 66A and deprived off of their fundamental right to life, equality, and free expression. Ironically, the statements are more often the political dissent than what has been demanded. This sad state of affairs has been brought before Hon’ble court by public-spirited NGO, People Union for Civil Liberties.


The apex court expressed shock as section 66A was held unconstitutional, and thousands of FIRs have been filed. Resulting from this, the Ministry of Home Affairs directed all State govt and police chiefs to withdraw all the applications with the immediate effect filed under Section 66A of IT Act, 2000. It brings crucial questions before the system: how to section being struck down can put the individuals behind bars.


Why are the cases been filed despite the section being held unconstitutional?


1. Parliamentary procedures – There exist pillars of democracy that are inter-dependant: legislature, executive, and judiciary. It is the parliament to pass the laws and the bench to interpret. Mere declaration of a particular section to be unconstitutional means omission of its use. The executive authorities read and interpret the unamended statutes; thus, it is essential to amend them.

For example, Section 303 of the Indian Penal Code, 1860, was struck down by the Hon’ble Supreme Court in 1982, but courts have convicted the accused by awarding capital punishment. The sole reason for this is that publishers provide in the footnote and not in the main text that the court has held it unconstitutional. Thus, the same unamended part has been interpreted and applied by executive authorities.





2. Passiveness of Executive – The Gazette Notification is a legal document that acts as an official newspaper to provide critical updates. After the judgment of Shreya Singhal v. Union of India, the Government could have notified that a particular section is to be held unconstitutional and not to be used by authorities.


Even a letter addressing all Chief Secretaries and Director-Generals would have sufficed. This shows the intention of the government to curb internet freedom than to protect their fundamental rights.


3. Judiciary – Hon’ble Supreme Court, the highest court of India, in the hierarchy. To maintain respect for the apex court, particular articles have been inserted by the learned constitution-makers. Article 141 and 144 of the Indian Constitution provides that the court’s decision would be binding within the territories of India. Despite the judgments being passed, lower courts have, in the mistake of law, if not intentionally, has been convicting individuals under Section 66A.


Even the magistrates have the power to order for the withdrawal of cases under section 321 of the Criminal Procedure Code, 1973. But in ignorance, they are not applying it. Thus, there is a need to create a mechanism to communicate judgments of the Supreme court to lower daily. Additionally, district courts can also send landmark judgments to the lower courts on an urgent basis to ensure individuals’ right to life and liberty.


4. Retrospective or prospective application – When the Hon’ble court delivered the judgment, the future or retrospective application issue was not discussed. This has created confusion, and thousands of FIRs have been filed in 2017, 2019, 2020. It has been an established practice that wit has to be considered retrospectively when the courts are silent on the issue application.


Conclusion


There has been continuous misuse of section 66A of the Information and Technology Act. Even after being held unconstitutional, its applicational brings out the failure of the legal system, which is impairing the life and liberty of individuals who are using their right to freedom of speech and expression. It is not only the judicial system, but we as a whole are responsible for bringing such a nightmare. There is an urgent need to implement policy measures to ensure that unconstitutional sections do not act like zombies, and rest in peace!